Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• location information
• witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence and
• other identifiers which are likely to reveal personal information about individuals involved in the investigation

Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injuries sustained by a 30-year-old woman as a result of an interaction with Hamilton Police Service (HPS) on July 25, 2016.

Notification of the SIU

At 2:30 a.m., on July 25, 2016, HPS contacted the SIU to advise that at about 12:55 a.m., a taxi driver asked a woman if she needed a ride, in the area of John Street and Hunter Street. The woman [now known to be the Complainant] brandished a knife and told the taxi driver, “Look out I have a knife.” The taxi driver left the area, found a police patrol unit and pointed out the Complainant to the police officers. The police officers approached the Complainant and she drank from a can of paint stripper. A conducted energy weapon (CEW) was deployed twice but the first deployment was ineffective. The Complainant was taken to the ground. The emergency medical services (EMS) were contacted and she was taken to the hospital. The Complainant was admitted to the Intensive Care Unit (ICU), where she was intubated and unconscious.

The team

Number of SIU Investigators assigned: 6

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes and photography.

Complainant

30-year-old female interviewed, medical records obtained and reviewed

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness officers

WO #1 Not interviewed[1]

WO #2 Not interviewed[2]

WO #3 Interviewed

WO #4 Interviewed

Subject officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.

The scene

The scene was located in a parking lot on the northwest corner of Hunter Street and Catharine Street in Hamilton. There were three police vehicles in the parking lot near the southwest corner of the parking lot. In the southwest corner of the parking lot, there was a pair of running shoes, CEW blast doors, CEW wires and CEW Anti Felon Identification systems (AFID) markers.

Physical Evidence

CEW Downloads

At about 9:46:12 a.m., on July 25, 2016, SIU Forensic Investigators downloaded WO #4’s CEW. The download showed that at 12:44:31 a.m., the CEW was armed and then fired. The CEW fired for a five second cycle and stopped at 12:44:36 a.m. The time on the CEW was inaccurate by one minute and eighteen seconds.

At about 9:52:17 a.m., on July 25, 2016, SIU Forensic Investigators downloaded WO #3’s CEW. The download showed that at 12:45:16 a.m., the CEW was armed and then fired. The CEW fired for a five second cycle and stopped at 12:45:18 a.m. The time on the CEW was inaccurate by one minute and twenty nine seconds.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications recordings

Summary of communications recordings

Track 1: A man [now known to be CW #1] called the 911 operator to report a man [now known to be a woman (the Complainant)] carrying a big knife. CW #1 was at the GO station and asked the Complainant if she needed a ride. The Complainant took a knife from her bag and told CW #1 to “be careful I have a big knife”. CW #1 provided the location of the Complainant and said she went into a parking lot.

Track 2: The dispatcher requested units for a man with a knife outside the GO station. CW #1 called in at 12:35:42 a.m. to advise that when he asked a man [now known to be the Complainant] if she needed a ride, the Complainant told CW #1 “be careful I have a big knife”. WO #3 and WO #4 responded at 12:40:17 a.m. The dispatcher provided the officers with a description of the Complainant. The SO also responded to the call. At 12:42:43 a.m., CW #1 advised the dispatcher that he could see the police on scene.

The dispatcher provided the location of the Complainant that was provided by CW #1. The dispatcher provided an updated location of the Complainant on John Street and Jackson Street. An unknown officer said he was going to Catharine Street. Then an unknown officer said the Complainant had a knife and was walking away from them. They were at Catharine Street approaching Hunter Street.

An unknown officer said, “Taser” deployed, then an unknown officer said everything was 10-4 and one was in custody. At 12:44 a.m., the dispatcher asked if an ambulance was required because of CEW use. WO #4 confirmed an ambulance should respond.

The SO asked the dispatcher to notify the ambulance that the Complainant had consumed Polystrippa paint stripper and it was a poison. An unknown officer advised that the Complainant was drooling and going unconscious. The officer requested a rush on the ambulance. An unknown officer advised the ambulance was on the scene.

Dispatch was updated that the Complainant was unconscious but breathing. The dispatcher updated the SO. The SO advised that he would update a Staff Sergeant on the Complainant’s condition.

Materials obtained from police service

Upon request the SIU obtained and reviewed the following materials and documents from HPS

• Communications Recording Request with Handwritten Notations
• Event Chronology
• Notes from WO #3 and WO #4
• Occurrence Details Report
• Complainant’s Prior Contact with Police
• Procedure - Use of Force Reporting
• Procedure - Use of Force and Equipment
• Procedure - Mentally Ill and Emotionally Disturbed Persons
• Procedure - Arrest and Compelling Appearance in Court
• Will State of WO #3 and WO #4, and
• Witness Statement of CW #1 and CW #2

On July 25, 2016, shortly after 12:30 a.m., CW #1 was in the area of John Street and Hunter Street in the city of Hamilton when the Complainant threatened him with a knife. As a result, CW #1 called 911 and reported the incident.

WO #3, WO #4 and the SO responded to the call in separate police vehicles. Police observed the Complainant to be holding a butcher knife and advised her to drop the knife. The Complainant ignored the officers’ commands and continued to walk towards Hunter Street. The Complainant was observed drinking from a can, and then throwing it away. The SO unholstered his firearm, and both WO #3 and WO #4 drew their CEWWO #3 and WO #4 each deployed their CEWWO #4’s was effective. The Complainant fell to the ground and was handcuffed. The Complainant began to foam at the mouth and lost consciousness. An ambulance was requested.

The can that the Complainant had thrown away was recovered and it was discovered that the Complainant had consumed Polystrippa paint stripper. The Complainant was transported to the hospital where she was sedated, intubated and treated for a drug overdose, ingestion of a poisonous substance and numerous mental health issues.

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person,
2. as a peace officer or public officer,
3. in aid of a peace officer or public officer, or
4. by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

On July 25, 2016, at approximately 12:35 a.m., a call was received by the 911 dispatcher for the HPS with respect to a man with a knife who had threatened a taxi driver in the area of John Street and Hunter Street in the city of Hamilton. As a result, three police cruisers were dispatched and three HPS police officers, WO #3, WO #4 and the SO, responded to the call and subsequently apprehended the Complainant. Following her interaction with police, the Complainant was transported to the hospital where she was sedated, intubated and assessed to be in critical but stable condition.

During the course of the investigation by the SIU, five civilian witnesses, including the Complainant, and all three police officers who responded to the 911 call provided statements to SIU investigators. As there is no conflict between the Complainant, the civilian witnesses or the police officers, I will summarize the sequence of events below.

The Complainant does not dispute that at the time leading up to the police involvement, she was armed with a butcher knife and showed it to CW #1. Other witnesses confirmed that she was armed, agitated and screaming at CW #1 at the time. Nor does the Complainant deny that she drank from a can of Polystrippa paint stripper.

The SO advised that he heard the radio call requesting units respond to a call for a person with a knife. He was aware that both WO #3 and WO #4 were also dispatched. When the SO arrived on scene, he spoke to CW #1 and then observed the Complainant in a parking lot walking towards Hunter Street. CW #1 confirmed to the SO that this was the person who had threatened him with a knife. WO #3 and WO #4 then arrived in separate cruisers; all three police officers drove into the parking lot and exited their vehicles. The SO observed the Complainant to be holding a butcher knife in front of her as she walked away from the officers. All three officers then followed her repeatedly yelling “Stop, police! Show me your hands! Drop the knife!” The Complainant ignored the commands of the police officers and continued to walk towards Hunter Street. The SO unholstered his firearm, and both WO #3 and WO #4 drew their CEWSO observed the Complainant holding something towards her mouth from which she appeared to be drinking. The Complainant then threw the container away. At that point, the SO became concerned when the Complainant began nearing an area where other people were congregated.

WO #4 recalled that he drove to the parking lot adjacent to Hunter Street and parked his police cruiser about thirty feet away from the Complainant. When WO #4 exited his police cruiser, he observed the Complainant to have a large knife pointed downwards. WO #4 yelled at the Complainant to drop the knife. WO #4 observed the Complainant tilt back her head, as if she was drinking something, and then observed her to throw away an item which he believed may have been the lid of a beverage.

WO #3 also recalled that the dispatcher had advised him that the person they were looking for may have mental health issues. WO #3 advised that as he drove towards the parking lot, WO #4 was behind him in his cruiser and that he saw that the police cruiser of the SO was in the area. WO #3 exited his police cruiser, and, all three police officers were yelling at the Complainant to drop the knife as she walked away from them. As the Complainant was walking towards Hunter Street, WO #3 drew his CEW; discharged it at the Complainant; however, it was ineffective. WO #4, when he got within ten feet of the Complainant, also deployed his CEW. WO #4 heard the Complainant cry out; observed her body to lock up; and fall onto the ground on her buttocks.

The SO observed that when WO #3 deployed his CEW, it was ineffective. The SO then observed WO #4 deploy his CEW successfully and observed the Complainant fall to the ground, with the knife beside her. One of the officers then kicked the knife away. The Complainant was handcuffed and placed in a recovery position. An ambulance was requested. The SO retrieved the item that the Complainant had discarded and found it to be a can of Polystrippa paint stripper.

When WO #4 observed the Complainant to be thrashing and attempting to kick the police officers while she was on the ground, he then pressed her legs down with his right foot. WO #4 recalled that an ambulance was required because the Complainant had consumed, what at that point, was an unknown substance. WO #4 described the Complainant as being unconscious and drooling.

WO #3 advised that when WO #4 discharged his CEW, it was effective and the Complainant spun around facing them. WO #3 ran over to safely guide the Complainant to the ground. Once on the ground, WO #3 turned the Complainant onto her stomach; handcuffed her arms behind her back; and saw that she was foaming from the mouth.

At 12:44:20 a.m. the communications dispatcher was advised that a CEW had been deployed. The SO requested that the communications dispatcher request an ambulance as the Complainant had consumed an unknown quantity of Polystrippa paint stripper which is a poisonous substance. The dispatcher was further advised that the Complainant was drooling; was losing consciousness; and, that a request was made to rush the ambulance. At 12:45:25 a.m. an ambulance was dispatched to the scene.

The Complainant was assessed at the hospital and a urine toxicology screen tested positive for oxycodone, cannabis, benzodiazepines, methamphetamines and amphetamines. Her medical records indicate she was treated for a drug overdose, ingestion of a poisonous substance and numerous mental health issues. The records are silent as to whether or not the CEW deployment played any part in her condition or if it was as a direct result of her ingestion of the paint stripper just prior to the deployment of the CEW. As such, it is impossible to determine if there is any causal connection between the deployment of the CEW and her loss of consciousness.

The totality of the evidence in this matter is beyond any dispute and is not contradicted by any witness. The evidence clearly establishes that the Complainant was in a public place; was openly in possession of a large knife; that CW #1 had reported that the Complainant had threatened him with that knife; and that, at the time she was observed by police, she was still in possession of the large knife. In addition, the Complainant drank an unknown quantity of Polystrippa, a paint stripper, known to be a poisonous substance. While still armed with the knife, the Complainant began to walk toward Hunter Street, which was perceived by the police officers to be a place where there would be more pedestrian traffic. Although the SO had his firearm unholstered, he determined that the incident required a less lethal use of force option. A CEW was deployed on two occasions. The first deployment was unsuccessful, and, the second deployment successfully struck the Complainant, momentarily disabling her. At that point, the Complainant was detained and handcuffed.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the statement of all witnesses that the Complainant was, at the very least, a danger to the public in that she was in possession of weapon which she had used to threaten CW #1 and had the potential to cause serious injury to others civilian in the immediate area. In addition, it is clear that the Complainant’s own personal safety was in jeopardy. As such, in all of the circumstances, the pursuit and apprehension of the Complainant was warranted and legally justified.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, it is my conclusion that the behaviour of all the police officers involved was justified in all of the circumstances. The police officers used no more force than was absolutely necessary to subdue the Complainant, who was walking towards a more populated area while still in possession of a large knife and ignoring commands by police to drop her weapon. In light of the fact that she had already threatened CW #1 with the knife, it was not a stretch to find that she was capable of threatening and/or causing injury to others, if not subdued. Although the medical records do not link the Complainant’s condition to the use of the CEW, I find that even if it were caused by the deployment of the CEW in order to subdue the Complainant, I cannot find that to have been an excessive use of force. On the record, it is clear that the CEW was used with effect against the Complainant on only one occasion, and the deployment was not repeated after she fell to the ground. In all of the circumstances, the option resorted to by the officers to apprehend the Complainant was the most viable and reasonable option available. In coming to these conclusions, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows:

As such, I find that the use of force by the officers therefore fell within the range of what was reasonably necessary in the circumstances to affect her lawful detention.

In the final analysis, I am satisfied on reasonable grounds on the totality of the evidentiary record that the actions exercised by the police officers and specifically, the SO, fell well within the limits prescribed by the criminal law and that there are no grounds for proceeding with charges in this case.

Date: September 5, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #1 was not interviewed because he arrived at the scene after the incident occurred. [Back to text]
• 2) [2] WO #2 was not interviewed because she arrived at the scene after the incident occurred. [Back to text]